Judge flushes drug charge down commode after ‘demeaning’ rights violation

Hey there, time traveller!
This article was published 25/10/2023 (722 days ago), so information in it may no longer be current.

A Manitoba man arrested after police watched him expel a drug-filled balloon during a trip to the washroom is no longer facing prosecution after a judge ruled police repeatedly violated his charter rights.

William Fuller, 27, was charged with one count of possession for the purpose of trafficking after he was taken into custody for outstanding warrants in January in Selkirk.

“The means by which the police obtained the drugs are at issue,” provincial court Judge Cynthia Devine said in a Sept. 22 written decision excluding all evidence related to the drug seizure. Court records show the drug charge against Fuller was stayed that same day.

“The admission of evidence that is so illegally obtained, in violation of integral charter rights and interests, along with the significant impact of these violations, would impair public confidence in the administration of justice.”– provincial court Judge Cynthia Devine

An RCMP officer involved in the drug seizure testified at trial several “red flags” raised suspicions Fuller engineered his initial arrest so he could be returned to Stony Mountain Institution to traffic the drugs.

Devine rejected the officer’s testimony, saying there was no evidence to support his suspicion, and, consequently, no grounds to violate Fuller’s privacy by accompanying him to the washroom.

“I agree that trafficking in drugs in our jails and prisons is a serious problem… however, that cannot tip the scales past the seriousness of the multiple charter violations and the impact of the violations on Mr. Fuller’s interests,” Devine said.

“The admission of evidence that is so illegally obtained, in violation of integral charter rights and interests, along with the significant impact of these violations, would impair public confidence in the administration of justice.”

Court heard testimony an off-duty RCMP officer, identified in Devine’s decision as Const. Dean, was gassing up her cruiser at a Selkirk service station at about 3 a.m., Jan. 9, when a motorist approached her to say he had picked up a hitchhiker who was refusing to leave his vehicle.

Fuller, the hitchhiker, got out of the vehicle and approached Dean, who checked his name and found he had three outstanding warrants, one of them for breaching his parole. Dean arrested Fuller, who was described as very intoxicated, but co-operative, and with another officer, Const. Lorenz, took him to the Selkirk detachment, where he was placed in a monitored cell.

An officer identified in Devine’s decision as Const. Lazaruk testified he was on duty at the detachment that morning and was told by officers involved in Fuller’s arrest that the circumstances were “suspicious,” and that they believed Fuller wanted to be arrested so he could return to Stony Mountain Institution to traffic drugs he was carrying inside his body.

Lazaruk said he was aware of four to six cases of parolees engineering their arrests so they could be sent back to Stony Mountain Institution to traffic drugs, including one who died in police custody.

But Lazaruk made no mention of these suspicions in his police notes and both Dean and Lorenz testified they had no concerns Fuller orchestrated his arrest, Devine said.

Lazaruk testified a second “red flag” was raised suggesting Fuller had secreted drugs inside his body after a cell guard told him Fuller had not used the washroom in five hours.

Devine said that “red flag” carried “little weight,” given Fuller’s intoxication and that there was no evidence when he had last gone to the washroom prior to his arrest.

“If he was like most humans, he was likely sleeping the entirety of the time, and therefore not going to the washroom,” Devine said.

Fuller talked to a lawyer at about 9 a.m. and was told he was going to be transferred to the Winnipeg Remand Centre, not Stony Mountain Institution, at which point he became “agitated and visibly upset.”

“For Const. Lazaruk, this was another ‘red flag,’” Devine said. “There are several reasons why a federal prisoner would prefer to be returned to their own institution, rather than through the crowded intake units at the Remand Centre in Winnipeg.”

Lazaruk testified he took his suspicions to his sergeant, who told him to “err on the side of caution” and have Fuller medically cleared so he didn’t die in custody.

“Mr. Fuller was not in medical distress. He was exhibiting no unusual behaviour.”– provincial court Judge Cynthia Devine

Lazaruk said he told Fuller he was under suspicion of smuggling drugs and was being taken to hospital to be medically cleared.

At the hospital, Fuller walked toward a washroom when Lazaruk told him an officer would have to go with him. Fuller became upset and yelled at officers, saying he had post-traumatic stress disorder and did not want people watching him.

Lazaruk accompanied Fuller inside the single-toilet bathroom and after Fuller defecated seized an expelled balloon containing 24 grams of methamphetamine.

Devine said she did not accept Lazaruk’s testimony he took Fuller to hospital out of concern for his well-being.

“I accept that Const. Lazaruk decided that taking Mr. Fuller to the hospital to have the drugs discovered was as a result of his elevated concern that if Mr. Fuller did have drugs in his body and went into medical distress, he did not want that to be at the police station, but rather in the hospital,” Devine said. “However, Mr. Fuller was not in medical distress. He was exhibiting no unusual behaviour.”

Police detained and imprisoned Fuller for a drug investigation that but for a “mystery suspicion” there were insufficient grounds to hold him, she said.

The seizure of the drugs amounted to a warrantless search, Devine said.

“There were insufficient grounds for Mr. Fuller’s arrest,” she said “Without an arrest, there cannot be a valid search incident to arrest.”

Prior to police seizing the drugs, Fuller was not told he was being detained for a drug investigation or given an opportunity to obtain legal advice, Devine said.

“Instead he was subjected to an embarrassing, demeaning, and possibly traumatic search where he had to defecate while being watched by a police officer in the bathroom with him,” she said.

dean.pritchard@freepress.mb.ca